J-S46028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DARRYL LANGERSTON

Appellant No. 108 EDA 2016

Appeal from the PCRA Order December 15, 2015

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0002149-2006

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.: FILED JULY 06, 2016

Darryl Langerston appeals, pro se, from the order entered December 

15, 2015, in the Court of Common Pleas of Montgomery County, denying, as 

untimely filed, his sixth petition filed pursuant to the Pennsylvania Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Langerston seeks 

relief from the judgment of sentence of a term of 20 to 40 years’ 

imprisonment imposed on November 14, 2006, following his convictions of 

third-degree murder and possessing an instrument of a crime.1 On appeal, 

Langerston argues: (1) the PCRA court erred in dismissing his petition as 

untimely filed when he demonstrated the facts supporting his claim were 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 2502(c) and 907(a), respectively.
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unknown to him until recently; (2) trial counsel was ineffective for failing to 

challenge a sentence outside the sentencing guideline range and failing to 

challenge inadmissible hearsay evidence; and (3) the trial court had no 

jurisdiction because the criminal statutes he was convicted under are 

unconstitutional. See Langerston’s Brief at ii. Based upon the following, we 

affirm.

The PCRA court aptly summarized the facts and procedural history 

underlying this appeal and we adopt the PCRA court’s summary of the 

background of this case.2 See PCRA Court Opinion, 2/16/2016 at 2-4.

As noted above, the PCRA court concluded Langerston’s petition was 

untimely filed. “The PCRA timeliness requirement ... is mandatory and 

jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248 

(Pa. 2014) (citation omitted), cert. denied, Taylor v. Pennsylvania, 134 

S.Ct. 2695 (2014). Therefore, we must determine the timeliness of the 

petition before reviewing Langerston’s substantive claims. Id. Generally, all 

PCRA petitions must be filed within one year of the date the judgment of 

sentence becomes final, unless the petition alleges, and the petitioner 

proves, that one of the three enumerated exceptions to the time for filing 

____________________________________________

2 On January 6, 2016, the PCRA court ordered Langerston to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Langerston complied with the PCRA court’s directive, and filed a concise 

statement on January 22, 2016.
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requirement is met. See 42 Pa.C.S. § 9545(b)(1). The PCRA exceptions 

that allow for review of an untimely petition are as follows: (1) 

governmental interference; (2) the discovery of previously known facts; and 

(3) a newly recognized constitutional right. See 42 Pa.C.S. §9545(b)(1)(i)-

(iii).

Our review of the record confirms that the PCRA court properly 

determined Langerston’s petition, filed December 9, 2015, was untimely, 

and that Langerston failed to prove the “unknown facts” exception to the 

PCRA’s one year time bar. See PCRA Court Opinion, 2/16/2016 at 6-10 

(finding: Langerston conceded petition was untimely; the information 

contained in the recently acquired Sentencing Guideline form was not “new,” 

as it was available at the time of his sentencing hearing; “[t]he Sentencing 

Guideline form is nothing but a new source of information that Langerston 

heard first hand at his sentencing hearing[;]” and in any event, Langerston 

did not demonstrate the form could not have been acquired sooner had he 

exercised due diligence). Therefore, we adopt the discussion of the PCRA 

court as dispositive of his first issue on appeal.

With regard to his remaining claims, we note that they are substantive 

challenges to either trial counsel’s stewardship or the jurisdiction of the trial 

court. See Langerston’s Brief at ii. However, it is well established that 

“[t]he PCRA’s timeliness requirements are jurisdictional; therefore, a court 

may not address the merits of the issues raised if the petition was not timely 

filed.” Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. Super. 2012) 
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(citation omitted). Accordingly, we are precluding from addressing the 

remaining claims on appeal.3

Order affirmed.4

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2016

____________________________________________

3 We note Langerston does not argue that any of the statutory exceptions to 

the one-year time bar applies to his claims that counsel failed to challenge 

hearsay evidence and that the criminal statutes he was convicted under are 

unconstitutional. Moreover, Langerston’s challenge regarding purported 

hearsay evidence was rejected in his first PCRA petition. See 

Commonwealth v. Langerston, 981 A.2d 315 (Pa. Super. 2009) 

(unpublished memorandum). Accordingly, even if his petition was timely 

filed, that particular claim would be unreviewable as previously litigated. 

See 42 Pa.C.S. § 9543(a)(3) (petitioner only eligible for PCRA relief if the 

allegation of error has not been previously litigated or waived).

4

In the event of further proceedings, the parties are directed to attach the 

PCRA court’s February 16, 2016 opinion to this memorandum.
that Langerston could not establish that the facts upon which his claim was 

predicated were unknown to him and that they could not have been ascertained 

sentence." See, PCRA petition 11/12/15, p. II. However, this Court determined 

sentenced to "a sentence greater than the lawful maximum for a standard range 

County Clerk of Courts on September 16, 2015 at which time he realized he was 

Commission on Sentencing Guideline Sentence Form from the Montgomery· 

invoke the newly-discovered facts exception at Section 9545(b)(l)(ii), arguing 

that he exercised due diligence in requesting a copy of the Pennsylvania 

facially untimeliness of his most recent PCRA petition, Langerston attempted to 

Act ("PCRA"), 42 Pa.CS.A. §§9541-9546. While Langerston acknowledged the 

se petition, seeking post-conviction relief pursuant to the Post-Conviction Relief 

order of dismissal dated December 15, 2015, dismissing his untimely sixth pro 

Appellant, Darryl Langerston ("Langerston"), appeals from a final 

FACTUAL AND PROCEDURAL HISTORY 

CARPENTER J FEBRUARY 16, 2016 . 

OPINION 

DARRYL LANGERSTON 108 EDA 2016 

V. 

COMMONWEALTH OF PENNSYLVANIA CP-46-CR-OOO 214 9-2 006 

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY 

PENNSYLVANIA 

CRIMINAL DIVISION 

... 

Circulated 06/22/2016 02:30 PM
On March 24, 2008, Langerston filed a timely first PCRA petition. 

Counsel was appointed, and finding no meritorious issues to pursue, counsel 

filed a no-merit letter. After proper notice pursuant to Pa.R.Crim.P. 907, a final 

order dismissing Langerston's PCRA petition was issued on July 10, 2008. 

Langerston appealed. On June 16, 2009, the Pennsylvania Superior Court 

affirmed the dismissal and the Pennsylvania Supreme Court denied 

Langerston's petition for allowance of appeal. 

On February 8, 2010, Langerston filed an untimely second PCRA 

petition. He filed a response to the pre-dismissal notice styled as a writ of 

habeas corpus ad subjiciendum. On May 20, 2010, the writ of habeas corpus 

was dismissed. On June 2, 2010, the untimely second PCRA petition was also 

2 

by the exercise of due diligence. Therefore, this Court concluded that the newlydiscovered facts exception was unavailable to Langerston. Accordingly, the 

underlying merits of this untimely fifth PCRA petition were not reviewed based 

upon this Court's lack of jurisdiction. 

By way of a brief background, on August 23, 2006, a jury convicted 

Appellant of third degree murder and possession of an instrument of crime for 

the February 7, 2006, stabbing death of Roderick Jackson. On November 14, 

2006, Appellant was sentenced to a term of 20 to 40 years' imprisonment. A 

timely direct appeal was not filed; however, Langerston's direct appeal rights 

were reinstated and a nunc pro tune direct appeal was filed. On November 26, 

2007, the Pennsylvania Superior Court affirmed Langerston's judgment of 

sentence. 

r 
3 

dismissed. Langerston appealed both orders, but later withdrew the appeal 

from the denial of his habeas corpus petition. The Pennsylvania Superior Court 

affirmed the dismissal of his second PCRA petition on February 25, 2011, and 

subsequently the Pennsylvania Superior Court denied Langerston's petition for 

allowance of appeal. 

On October 28, 2011, Langerston filed an untimely third PCRA 

petition, which was ultimately dismissed on January 11, 2012. The dismissal 

was appealed, and on August 29,· 2012, the Pennsylvania Superior Court 

affirmed the dismissal. 

On March 6, 2013, Langerston filed an untimely fourth PCRA 

petition. It was dismissed on April 1, 2013. Langerston did not appeal. 

A fifth untimely PCRA petition was filed on October 8, 2014. It was 

dismissed on November 10, 2014, after Langerston withdrew it. 

Most recently on December 9, 2015, Langerston filed an untimely 

sixth PCRA petition, which is currently at issue in this appeal. Therein, 

Langerston acknowledged its untimeliness, but attempted to invoke the newlydiscovered facts exception at Section 9545(b)(l)(ii), arguing that he exercised 

due diligence in requesting a copy of his Pennsylvania Commission on 

Sentencing Guideline Sentence Form ("Sentencing Guideline form") from the 

Montgomery County Clerk of Courts on September 16, 2015, at which time he 

realized he was sentenced to "a sentence greater than the lawful maximum for 

a standard range sentence." A more detailed understanding of his timeliness 

exception claim comes from Langerston's attached memorandum of law and his 

,. 
4 

I. This Court properly dismissed langerston's second PCRA petition as 

untimely, when he failed to prove that the timeliness exception at Section 

9545(b)(l)(ii), 42 Pa.CS.A. applied. 

DISCUSSION 

I. Whether this Court properly dismissed Langerston's fifth PCRA petition 

as untimely. when he failed to prove that the timeliness exception at 

Section 9545(b)(l)(ii), 42 Pa.CS.A. applied. 

ISSUE 

PCRA petition. Langerston filed a timely appeal. This 1925(a) Opinion follows. 

Court issued a final dismissal order, dismissing Langerston's untimely sixth 

not apply. No further explanation was provided. On December 15, 2015, this 

Court improperly determined that the newly discovered evidence exception did 

not a matter of record prior to his September 16, 2015, request, and that this 

response. He asserted in his response that the Sentencing Guideline form was 

his right to respond to the notice. On December 9, 2015, Langerston did file a 

petition because it was untimely and no timeliness exceptions to applied and of 

notifying Langerston of this Court's intention to dismiss his current PCRA 

On November 19, 2015, this Court issued a pre-dismissal notice, 

12/9/15, attached Memorandum of Law, p. 1. 

to the statutory maximum and not the standard range. See. PCRA petition 

erroneous Sentencing Guideline form which caused this Court to sentence him 

the standard range sentence but that the Commonwealth submitted an 

that the undersigned, as the sentencing judge, intended to only sentence him to 

argument in support of his ineffectiveness of counsel claim where he explains 

I 
There are three statutory exceptions to the timeliness requirements 

of the PCRA, which provide very limited circumstances to excuse the late filing 

5 

The timeliness of a PCRA petition is a jurisdictional requisite. 

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa.Super. 2011). "Jurisdictional 

time limits go to a court's right or competency to adjudicate a controversy." Id. 

(quoting Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)). "If the 

petition is determined to be untimely, and no exception has been pled and 

proven, the petition must be dismissed without a hearing because Pennsylvania 

courts are without jurisdiction to consider the merits of the 

petition." Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011) 

(quoting Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008)) 

Any PCRA petition, including a second and subsequent one, must 

be filed within one year of the date the judgment of sentence becomes final. 42 

Pa.C.S.A. §9545(b)(l). A judgment of sentence becomes final at the conclusion 

of direct review, or when the time for seeking such review expires. 42 Pa.C.S.A. 

§9545(b)(3). 

Our appellate court, when reviewing the propriety of an order 

dismissing a PCRA petition on timeliness grounds, determines whether the 

decision of the trial court is supported by the evidence of record and is free of 

legal error. Commonwealth v. Williamson, 21 A.3d 236, 240 (Pa.Super. 2011). 

The trial court's findings with regard to the timeliness of a PCRA petition will 

not be disturbed unless there is no support for those findings in the certified 

record. Id. 
6 

of a petition. To invoke an exception, a petition must allege and the petitioner 

must prove that (1) the failure to raise the claim earlier was due to the 

interference of government officials; (2) the claim is predicated on facts that 

were unknown to the petitioner and could not have been discovered with due 

diligence or (3) the right asserted was recognized by the United States Supreme 

Court or the Pennsylvania Supreme Court as a constitutional right after the 

petitioner's case was decided and the right has been upheld to apply 

retroactively. 42 Pa.CS.A. §9545(b)(l)(i)-(iii). A petition alleging one of these 

exceptions must be filed within sixty days of the date that the claim could have 

been presented. 42 Pa.CS.A. §9545(b)(2). The 60-day rule requires a petitioner 

to plead and prove that the information on which he relies could not have been 

obtained earlier, despite the exercise of due diligence. Commonwealth v. 

Marshall, 596 Pa. 587, 947 A.2d 714, 720 (2008). "As such, when a PCRA 

petition is not filed within one year of the expiration of direct review, or not 

eligible for one of the three limited exceptions, or entitled to one of the 

exceptions, but not filed within 60 days of the date that the claim could have 

been first brought, the trial court has no power to address the substantive 

merits of a petitioner's PCRA claims." Commonwealth v. Robinson, 12 A.3d 477, 

4 79 (Pa.Super. 2011) (quoting Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 

783 (Pa. 2000)). 

In this case, Langerston conceded that his current PCRA petition is 

facially untimely. This is not at issue. Rather, at issue is whether the Sentencing 

Guideline form can avail him of the newly-discovered facts exception. 

., 
7 

The timeliness exception set forth at Section 

9545(b)(l)(ii) has often mistakenly been referred to as 

the "after-discovered evidence" exception. Bennett, 

supra at 393, 930 A.2d at 1270. "This shorthand 

reference was a misnomer, since the plain language of 

subsection (b)(l)(ii) does not require the petitioner to 

allege and prove a claim of 'after-discovered 

evidence."' Id. Rather, as an initial jurisdictional 

threshold, Section 9545(b)(l)(ii) requires a petitioner to 

allege and prove that there were facts unknown to him 

and that he exercised due diligence in discovering 

those facts. See42 Pa.C.S.A. § 9545(b)(l)(ii); Bennett, 

supra. Once jurisdiction is established, a PCRA 

petitioner can present a substantive after-discoveredevidence claim. See42 Pa.C.S.A. § 9543(a)(2)(vi) 

(explaining that to be eligible for relief under PCRA, 

petitioner must plead and prove by preponderance of 

evidence that conviction or sentence resulted from, 

inter alia, unavailability at time of trial of exculpatory 

The timeliness exception set forth in Section 

9545(b)(l)(ii) requires a petitioner to demonstrate he 

did not know the facts upon which he based his 

petition and could not have learned those facts earlier 

by the exercise of due diligence. Commonwealth v. 

Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1271 (2007). 

Due diligence demands that the petitioner take 

reasonable steps to protecthis own interests. 

Commonwealth v. Carr, 768 A.2d 1164, 1168 

(Pa.Super.2001). A petitioner must explain why he 

could not have learned the new fact(s) earlier with the 

exercise of due diligence. Commonwealth v. Break.iron, 

566 Pa. 323, 330-31, 781 A.2d 94, 98 (2001); 

Commonwealth v. Monaco, 996 A.2d 1076, 1080 

(Pa.Super.2010). This rule is strictly enforced. Id. 

Additionally, the focus of this exception "is on the 

newly discovered facts, not on a newly discovered or 

newly willing source for previously known facts." 

Commonwealth v. Marshall, 596 Pa. 587, 596, 947 A.2d 

714, 720 (2008) (emphasis in original). 

Commonwealth v. Brown, 111 A.3d 171 (Pa.Super. 2015) in detail as follows: 

The exception at Section 9545(b)(l)(ii) has been explained in 

·1 
8 

petition 11/12/15, attached memorandum of law, claim 1 p. 1. He was present 

14, 2006, sentencing hearing at which Langerston was present. See, PCRA 

p. II. However he bases this argument on events that occurred at his November 

lawful maximum for a standard range sentence." See, PCRA petition 11/12/15, 

Langerston asserted that he was sentenced to "a sentence greater than the 

Sentencing Guideline form. In support of this allegedly improper sentence 

allegedly improperly sentenced and he did not know this until he uncovered the 

Langerston's newly-discovered evidence exception argument is that he was 

been ascertained earlier by the exercise of due diligence. The crux of 

established that these facts were unknown to him or that they could not have 

Applying the law to the facts of this case, Langerston has not 

established that the facts that he asserted as newly discovered, namely the 

information contained in the Sentencing Guideline form, and he has not 

Brown, 111 A.3d at 176-77 (emphasis in original). 

[S]ubsection (b)(l)(ii) has two components, which must 

be alleged and proved. Namely, the petitioner must 

establish that: 1) the facts upon which the claim was 

predicated were unknown and 2) could not have been 

ascertained by the exercise of due diligence. If the 

petitioner alleges and proves these two components, 

then the PCRA court has jurisdiction over the claim 

under this subsection. 

Thus, the "new facts" exception at Section 9545(b)(l)(ii) 

does not require any merits analysis of an underlying 

after-discovered-evidence claim.' Id. at 395, 930 A.2d 

at 1271. 

evidence that has subsequently become available and 

would have changed outcome of trial if it had been 

introduced). In other words, the "new facts" exception 

at:: 

... 
9 

for the entire hearing, and supports his claim in part on the sentencing 

transcripts and the following. He heard the Commonwealth request this Court 

to "sentence the, defendant to the maximum possible punishment: 20 - 40 years 

incarceration on the murder ... " (Sentencing 11/14/06 pp. 23 - 24). He also was 

present when this Court in announcing his sentence stated, " ... and the 

sentence I will impose will be in the standard range for third degree 

, murder ... [o)n the crime of third-degree murder, he will undergo imprisonment 

for not less than 20 nor more than 40 years." Id. at 27. Langerston does not 

explain what information was newly discovered from the Sentencing Guideline 

form that he had not heard at the sentencing hearing itself. The Sentencing 

Guideline form is nothing more than a new source of information that 

Langerston heard first hand at his sentencing hearing. 

Assuming that somehow Langerston was able to establish that the 

Sentencing Guideline form provided facts that he was previously unaware of, 

Langerston would not be able to establish due diligence in uncovering the 

Sentencing Guideline form. In his petition and in his response, Langerston 

baldly asserts due diligence, but does not account for any actions he has taken 

before his September 16, 2015, Sentencing Guideline form request to retrieve 

that form. Nor can he explain his inaction in failing to previously request the 

Sentencing Guideline form. He simply provides no further explanation. 

Additionally, Langerston also stated in his response to the predismissal notice that the form wasn't a part of the record until the time he 

requested it on September 16, 2015. However, he provides no evidence to 
10 

By First Class Mail to: 

Darryl Langerston #GW2381 

SCI Greene 

1 75 Progress Drive 

Wayneburg, PA 15370 

Copies sent onFebruary 16, 2016 

By Interoffice Mail to: 

Court Administration 

BY THE COURT: 

WIL~~se~.· L 

COURT OF COMMON PLEAS 

MONTGOMERY COUNTY 

PENNSYLVANIA 

38rn JUDICIAL DISTRICT 

should be affirmed. 

December 15, 2015, dismissing Langerston's untimely fifth PCRA petition 

Based on the forgoing analysis, the final order of dismissal dated 

CONCLUSION 

avail himself o( the newly-discovered evidence timeliness exception. 

Langerston was unable to establish due diligence; therefore, he was unable to 

almost nine years to request the Sentencing Guideline form. Accordingly, 

sentencing, November 14, 2006. Langerston does not explain why it took him 

that the Sentencing Guideline form was entered onto the docket on the day of 

reports. In fact, a review of the docket belies his contention. The docket shows 

Sentencing Guideline form to no avail or provide copies of previous docket 

support that assertion, e.g., what previous attempts he made at securing the 

f ; ... ~